Kenyan Senators have moved to the High Court to challenge the implementation of 20 laws passed by the National Assembly since 2013 contending that consultation between the two houses, as required by the law, did not take place.
In the case filed before High Court Justice Weldon Korir, the Senate accuses the lower house of ignoring the constitution in passing bills that touch on County matters.
Among the laws affected include past national budgets, new laws establishing the Kenya Coast Guard Service and the Building Surveyors Board as well as amendments to other existing laws.
The court referred the matter to the Chief Justice to constitute a panel of judges to hear the case.
In a statement read by Senate Majority Leader Kipchumba Murkomen, the senators said the National Assembly has repeatedly ignored the law to pass a myriad of bills, sometimes bundled together in what is called an Omnibus Bill, without consulting the Upper House.
“The Senate has this morning filed a Constitutional Petition in the Constitutional and Human Rights Division of the High Court to challenge all the laws that have been enacted unconstitutionally since the inception of the 12th Parliament,” Murkomen, flanked by fellow senators outside the court buildings, said.
He added that the National Assembly has flagrantly disregarded the legislative process as set out in the Constitution.
Article 110 (3) of the Constitution says, “Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question as to whether it is a Bill concerning counties, and if it is, whether it is a special or ordinary bill.”
The senators who were represented in court by Senator James Orengo contend that the 20 laws including the Finance Bill 2018 and Supplementary Budgets were enacted illegally.
Among other laws being challenged include the Kenya Coast Guard Service Bill 2018 that establishes a policing body to partrol Kenyan maritime waters and enforce laws against illegal fishing, piracy, pollution among others.
Another is the controversial Sports Amendment Bill 2018 which wrested control of the National Sports Fund from the Ministry of Sports back to the Treasury. This is after the Fund begun to accumulate billions levied from sports betting in the country.
In the latest budget read by Finance Minister Henry Rotich, money was forked from the Fund and redirected to cater for the new Universal Health Fund.
Then there is the Public Trustee Amendment Bill of 2017 which exempted the Public Trustee from remitting assets of Unclaimed Estates to the Unclaimed Financial Assets Authority. Instead such unclaimed estates will be held by the Public Trustee for seven years before reverting to the State by being deposited into the Consolidated Fund.
The Building Surveyors Bill of 2017 was enacted to establish a registration board for building surveyors and to maintain standards in the profession.
Yet another is the Capital Markets Amendment Bill 2018 that provides punishments for fraud and spells out clear enforcement action by the regulator.
Also being challenged is the Health Laws Amendment Act 2018 that amended sections of the Pharmacy and Poisons Act, the Medical Practioners and Dentists Act, the Nurses Act, and the Counsellors and Psychologists Act.
The petition also challenges the Saccos Societies Amendment Bill, the Tax Laws Amendment Bill 2018, and the National Youth Service Amendment Bill all of 2018.
Government vs Government
It is unusual for one government body let alone bodies of the same arm of government, the legislature to sue each other in court.
However, Article 3 of the Constitution also states, “Every person has an obligation to respect, uphold and defend this Constitution”
The constitution also confers original jurisdiction to deal with constitutional matters on the High Court granting it sole authority to disentangle such constitutional questions.
The Senate has put forward a petition to the High Court to declare that the said laws are null and void for violating six constitutional articles.
Article 96 which spells out the role of the Senate in matters touching on county government’s including making of laws and allocation of national revenue to counties.
Article 106 which details the roles of the speakers of the two houses of parliament.
Article 110 which explains how parliamentary bills relating to counties should be handled.
Article 111 and 112 that defines ordinary and special bills relating to counties and Article 113 that creates mediation committees of equal members of each house to mediate over a disputed bill.
The matter will now go to the Chief Justice to form a constitutional court bench of uneven number of judges who must be three or more, to hear the petition.
The National Assembly’s legal office in the meantime, is said to be working on filing preliminary objections to the matter being heard in court.